Chief Justice John Roberts Splits the Baby

Among the many stories in the Old Testament of judges and kings (often dual office-holders of sorts) is that of King Solomon's decision to cut a baby in half to determine who the true mother was. Chief Justice John Roberts channeled his inner King Solomon, of sorts, in penning the majority opinion in yesterday's ObamaCare decision. The chief justice rejected the constitutional basis by which the legislation passed the Congress, that it was an exercise of their commercial regulatory powers, and instead ruled that what Congress was doing was exercising its taxing power (whether or not it wanted o own up to that), which it could. He made a point to declare that "[i]t is not our job to protect the people from the consequences of their political choices," and that the ruling was not on the wisdom of the legislation, just its constitutionality. Had ObamaCare been presented in Congress as a tax, of course, it would probably have never passed. Democrats consistently denied it was a tax, and Obamacare just barely passed anyway. But those who cared still to legitimize legislation with the Constitution pointed to the Commerce Clause as justification—the Court, for the first time in 75 years, declined to expand Congress' commercial regulatory power, instead exercising "judicial restraint".

We live in a country whose federal regulatory code grows by the minute and whose federal government legislates and regulates a wide array of human activity. In placing ObamaCare within the realm of the government's power of taxation, the chief justice opens the constitutional door to all kinds of behavioral modification taxes down the line. Could the Congress set the tax rate to 100% and then offer rebates for purchasing the "correct" products and making the "correct" lifestyle choices to work that rate down to something more reasonable? The chief justice has said, essentially, not to look to the Court to stop the Congress from stupid politics. That's "restraint." So we're stuck with the Congress the country keeps electing and empowering. Do you want that baby?

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That was my reaction. I’ve always been pessimistic about the outcome and direction of the government regardless of the outcome. The only real nutpunch was that it was Roberts and not Kennedy, especially since Kennedy was ready to throw out the whole thing.

I’m hugely disturbed by the fact that a theoretical conservative pulled the specious it’s a tax idea out of his ass and that so many team red fellators are trying to rationalize the decision as a good thing.

At the Federal level, the income tax code has been used for carrots, to induce behavior changes. The government would put up a pile of money, and say people who do X can get a proscribed amount of this pile.

In this case they’re saying you must do X or you will pay us. This is new, and this is definitely a bad precedent. Can’t wait for all the future ways I’ll be compelled to act, or have to pay a penaltax.

Maybe I need to go back and read the story, but why would the fake mother have wanted to claim someone else’s child in the first place? Were there massive tax credits for children in Solomon’s day as well?

True, I had forgotten that there had been two babies and one died (and the dead baby’s mother was jealous of the other). In regards to Solomon’s wishes of God, I don’t think John Roberts could ever be conferred with “the Wise”. Maybe “the Prudent”, but even that is being generous.

What about this: the Court finds the law’s Medicaid expansion unconstitutional because it coerces the states into expanding by threatening to remove funding, but for some reason they don’t find it to be coercion when the federal government forces individuals to join a market they may not even participate in (before Tony overreacts, I’m talking about the health insurance market, not necessarily healthcare).

Read the dissent. It’s pretty brutal in tearing in to the majority opinion.

Excerpt-

“Our cases establish a clear line between a tax and a penalty: “[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.” In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held?never?that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power?even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act “adopt[s] the criteria of wrongdoing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax.

So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestionably is.”

you gotta admit, a tax on inaction is bold thinking. Not bold in a good way, but it does take the proverbial box and smash it to hell. Usually, taxes require you to do something: a sales tax comes with a purchase, income for work you did, and so on. New ground, man; a tax for not spending money.

I’m just baffled that Roberts was able to ignore the main point the dissent was making, that “We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power?even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.”

I mean, I get the idea that Roberts wasn’t willing to let the Com Clause be used, but if you make it a tax Congress doesn’t even need to bother with the CC.

The other woman answered, “It is not so! The living one is my son, the dead one is yours.” But the first kept saying, “No, the dead one is your child, the living one is mine!” Thus they argued before the king.

23

Then the king said: “One woman claims, ‘This, the living one, is my child, and the dead one is yours.’ The other answers, ‘No! The dead one is your child; the living one is mine.'”

24

The king continued, “Get me a sword.” When they brought the sword before him,

25

he said, “Cut the living child in two, and give half to one woman and half to the other.”

26

The woman whose son it was, in the anguish she felt for it, said to the king, “Please, my lord, give her the living child – please do not kill it!” The other, however, said, “It shall be neither mine nor yours. Divide it!”

27

The king then answered, “Give the first one the living child! By no means kill it, for she is the mother.”

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When all Israel heard the judgment the king had given, they were in awe of him, because they saw that the king had in him the wisdom of God for giving judgment.

Just before this scene, God had asked Solomon to grant anything he asked, and Solomon asked for “a listening heart to judge your people *and to distinguish between good and evil*” (emphasis added). God was to impressed at this request that in addition to wisdom He granted Solomon “riches and glory.”

IIRC Solomon had a weaker claim to the throne than another prince. Solomon was saying that the other prince (the real mom) should give up his claim to the throne to Solomon (the fake mom) since Solomon was prepared to divide the country (the baby) with the sword.

Nah, that honor would have been reserved for Kennedy. Roberts is more widely identified as conservative, and people who don’t know much about his jurisprudence wouldn’t have been surprised by his voting with Scalia et al. Mr. Swing Vote turning on them, and in such a brutal decision? That would have hurt.

“He made a point to declare that “[i]t is not our job to protect the people from the consequences of their political choices,” and that the ruling was not on the wisdom of the legislation, just its constitutionality”

It isn’t Roberts job to rewrite the legislation to convert what it calls a penalty into a tax merely to provide him a figleaf for not ruling it to be unconstitutional, either.

So, the whore that would have preferred to see the child slaughtered and both women left suffering rather than have someone be happier than her, that was a symbol for the people that would rather healthcare be shit for everyone rather than the rich and middle class have healthcare that the poor can’t afford to get, right? I’m trying to figure out how that ties into the analogy.

If members of Congress took their oath to the Constitution seriously, nothing like this would have ever passed. If the President took his oath seriously, he would have Vetoed the bill regardless of how he felt about the issue.